Majid v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1436
AHMED SHAH MAJID; SIMA A. MAJID; S. M.,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 08-1489
AHMED SHAH MAJID; SIMA A. MAJID; S. M.,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Argued: May 15, 2009 Decided: July 14, 2009
Before MICHAEL, SHEDD, and AGEE, Circuit Judges.
Petitions for review denied by unpublished per curiam opinion.
ARGUED: David Christopher Drake, JOHNSON & ASSOCIATES, PC,
Arlington, Virginia, for Petitioners. Paul F. Stone, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Randall L. Johnson, JOHNSON & ASSOCIATES, PC,
Arlington, Virginia, for Petitioners. Gregory G. Katsas,
Assistant Attorney General, Civil Division, Ethan B. Kanter,
Senior Litigation Attorney, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Ahmed Shah Majid seeks review of the Board of
Immigration Appeals’ (BIA) affirmance of an immigration judge’s
(IJ) denial of his application for asylum and withholding of
removal. Majid additionally seeks review of the BIA’s denial of
his motion for reconsideration. Majid claims that the IJ and
the BIA erred in ruling that his asylum application was not
timely filed. He also claims that the IJ erred in finding that
he was not credible and that he had not established a likelihood
of future persecution if he was returned to Afghanistan. We
deny Majid’s petition for review as to both of these claims.
First, this court lacks jurisdiction to consider Majid’s
challenge to the timeliness of his asylum application. Second,
we conclude that the IJ offered, on balance, cogent reasons to
support his adverse credibility determination -– a determination
that formed a sufficient basis for the IJ and the BIA to deny
Majid’s request for withholding of removal.
I.
Majid is a native and citizen of Afghanistan seeking
asylum in the United States or, alternatively, withholding of
removal to Afghanistan, on behalf of himself and his wife and
daughter. Majid claims to have traveled from Afghanistan to the
United States with his wife and daughter in August of 2001. The
3
date of his family’s entry into this country, however, was not
conclusively established. According to Majid’s asylum
application, his testimony before the IJ, and several
affidavits, he entered the United States by boat on August 10,
2001. An additional affidavit from Majid’s cousin places his
arrival on August 10, 2002, four months after Majid had filed
his asylum application within the United States. Neither the IJ
nor the BIA credited Majid’s account of his travel to the United
States, and the IJ placed Majid’s arrival in the United States
“on or about August 10, 1999,” J.A. 177, thereby disqualifying
Majid’s asylum application, which he was required to file within
one year of his entry into the United States.
Majid sought to establish the following facts in
support of his asylum application and application for
withholding of removal. While residing in Afghanistan, Majid
suffered persecution first at the hands of a powerful general,
Rashid Dostum, and later from the Taliban after it came to power
in 1996. Majid was trained as a lawyer and studied English for
approximately four years in school in Afghanistan. He came to
General Dostum’s attention in 1989 while defending a man accused
of bribery and corruption who claimed to have been framed by the
general. Majid investigated the case and concluded that General
Dostum had indeed framed his client because the client had
previously accused the general and the general’s soldiers of
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gang raping the man’s daughter. When General Dostum learned of
Majid’s investigation, he had his soldiers threaten Majid and
order Majid to discontinue the investigation. Majid refused to
do so. Majid was eventually arrested by General Dostum with the
help of the KHAD (the Afghani security and intelligence agency).
While in prison Majid was tortured, and after his release under
a general amnesty thirteen months later in 1991, he remained
“under the watch of General Dostum’s soldiers who were always
harassing [him].” J.A. 1060. Following his release Majid wrote
“secretive newsletters condemning the human rights atrocities
committed by the communists.” Id. When General Dostum and the
mujahidin came to power in April 1992, Majid spoke out against
them before fleeing from Kabul to Kara-Bagh, where he remained
for six years.
Majid was forced to return to Kabul in 1998 when the
Taliban began burning villages in the north of Afghanistan.
Upon his return to the capital, Majid suffered abuse at the
hands of the Taliban. He was beaten once for not wearing his
beard at an appropriate length, and was arrested twice in 2000
and held for a month and then for three weeks based solely on
his Tajik ethnicity and the fact that he was from north of
Kabul, the region where the Northern Alliance had fought against
the Taliban. In Kabul Majid spoke out against the Taliban’s
rejection of cooperation with the United Nations and aid from
5
the United States. Majid was accordingly accused of helping
Christians and Westerners. In 2001 Majid, upon learning from a
friend that the Taliban was planning to execute him, arranged
his family’s flight from Afghanistan.
Majid paid the equivalent of $25,000 to two smugglers,
Najeeb and Asef, to help his family to get to the United States.
The smugglers provided Majid and his wife and daughter with
false documentation in the form of green passports. Beginning
in Pakistan, Asef accompanied the Majid family throughout their
travels to the United States. The journey involved crossing the
border into Pakistan on foot, driving several hours, taking
three plane flights, the first from Pakistan to an Arab country
that Majid was unable to identify, the second to a European
country that Majid was also unable to identify, and the third to
a country that Majid later concluded was Canada, based on its
proximity to New York. The family then embarked on a boat for
the final leg of their journey and ultimately arrived in New
York. There, Majid contacted a relative in Virginia, and Asef
bought train tickets to Virginia for Majid and his wife and
daughter. Asef accompanied Majid and his family on the first
few stops of their rail journey, but Asef then got off the
train, taking with him the group’s tickets, which had been
punched by the conductor. The only documentation from the
journey Majid retained is a handwritten receipt in English from
6
the Shobra Hotel in Peshawar, Pakistan, where Majid and his
family stayed for two nights on the 26th and 27th of July 2001.
On April 1, 2002, Majid filed an application for
asylum with the Department of Homeland Security (DHS). After
conducting a credible fear interview, DHS referred Majid to the
Department of Justice for removal proceedings and charged Majid
with removability under Immigration and Nationality Act (INA)
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Majid appeared
before an IJ and conceded removability, but sought relief from
removal in the form of asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The IJ
denied Majid’s asylum claim, holding that Majid failed to
demonstrate by clear and convincing evidence that he had filed
the claim within one year of his arrival in the United States.
Further, the IJ found that Majid was not a credible witness.
The IJ therefore determined that Majid had not established that
he suffered persecution in Afghanistan on account of a protected
criterion, and concluded that Majid failed to establish that it
was more likely than not he would be persecuted if he returned
to Afghanistan. The IJ consequently rejected Majid’s
applications for withholding of removal under the INA and the
CAT. He also found Majid ineligible for voluntary departure
pursuant to INA § 240B(b), 8 U.S.C. § 1229c(b), because Majid
had not established a desire for voluntary departure, the means
7
to do so, or that he had been present in the United States for
more than one year before the notice to appear was served.
On appeal the BIA affirmed the IJ’s decision. It
adopted the IJ’s finding that Majid failed to establish entrance
into the United States within one year of filing his asylum
application and the IJ’s adverse credibility determination. The
BIA accepted the reasons offered by the IJ and, in addition,
pointed out the contradiction between Majid’s cousin’s
affidavit, which places the date of Majid’s entry into the
United States on August 10, 2002, and the other affidavits,
Majid’s application, and Majid’s testimony, which place it on
August 10, 2001. The BIA noted that this contradiction
“significantly underscores the propriety of the Immigration
Judge’s decision on this issue.” J.A. 60. The BIA also
rejected Majid’s claim for withholding of removal under the CAT.
Majid filed two subsequent motions for reconsideration with the
BIA, both of which were rejected, and he now petitions for
review of the denial of his asylum application and the denial of
withholding of removal.
II.
Majid first challenges the IJ’s and the BIA’s
determinations that he did not timely file his asylum
application within one year of his arrival in the United States.
8
Majid does not dispute that pursuant to INA
§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), he bore the burden of
proving that his asylum application was filed within one year
after the date of his arrival in the United States. The IJ
found, and the BIA affirmed, that Majid had not carried this
burden.
Section 208(a)(3) of the INA, 8 U.S.C. § 1158(a)(3),
provides a “Limitation on judicial review”: “No court shall have
jurisdiction to review any determination of the Attorney General
under paragraph (2)” -- that is, any determination of whether
the asylum seeker has met his burden of proof regarding the
timeliness of the application. We have affirmed in dicta that
this provision means what it says. See Niang v. Gonzales, 492
F.3d 505, 510 n.5 (4th Cir. 2007) (“It is worth noting that,
even assuming [the petitioner] had not waived the timeliness
issue with respect to her asylum claim, we lack jurisdiction to
review the BIA’s decision in this respect.”) (citing 8 U.S.C.
§ 1158(a)(3)); Balde v. Gonzales, 223 F. App’x 265, 266 (4th
Cir. 2007) (unpublished); Lin v. Gonzales, 190 F. App’x 301, 305
(4th Cir. 2006) (unpublished). Other circuits have similarly
held that § 1158(a)(3) precludes review by federal courts. See
Hana v. Gonzales, 503 F.3d 39, 42 (1st Cir. 2007); Yakovenko v.
Gonzales, 477 F.3d 631, 635 (8th Cir. 2007); Tarrawally v.
Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); Tsevegmid v.
9
Ashcroft, 318 F.3d 1226, 1230 (10th Cir. 2003); Fahim v. U.S.
Att’y Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002); Hakeem v.
INS, 273 F.3d 812, 815-16 (9th Cir. 2001); see also Tarraf v.
Gonzales, 495 F.3d 525, 531 n.5 (7th Cir. 2007). We are
therefore unable to review the timeliness of Majid’s asylum
claim.
III.
Majid also challenges the denial of his application
for withholding of removal. To qualify for withholding of
removal, Majid must establish that if he was sent back to
Afghanistan, there is a clear probability that his “life or
freedom would be threatened in that country because of [his]
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “An
applicant who has failed to establish the less stringent well-
founded fear standard of proof required for asylum relief is
necessarily also unable to establish an entitlement to
withholding of removal.” Anim v. Mukasey, 535 F.3d 243, 253
(4th Cir. 2008) (internal quotations removed). While “[a]n
applicant who successfully demonstrates that she suffered past
persecution on account of a protected ground is presumed to have
[the] well-founded fear of persecution required for refugee
status,” Dankam v. Gonzales, 495 F.3d 113, 120 (4th Cir. 2007)
10
(internal quotations removed), “[b]ecause the subjective element
cannot generally be proved other than through the applicant’s
testimony, an adverse credibility finding regarding testimony
about fear of future persecution will likely defeat a claim
unless the applicant introduces independent evidence of past
persecution,” Anim, 535 F.3d at 260 (internal quotations
omitted). Here, Majid offered no evidence of past persecution
beyond his own personal account, which the IJ and the BIA
declined to credit. Accordingly, the BIA’s denial of his claim
for withholding of removal must be affirmed if we accept the
IJ’s adverse credibility determination.
“We review the BIA's administrative findings of fact
under the substantial evidence rule, and we are obliged to treat
them as conclusive unless the evidence before the BIA was such
that any reasonable adjudicator would have been compelled to
conclude to the contrary.” Haoua v. Gonzales, 472 F.3d 227, 231
(4th Cir. 2007). When the BIA adopts the IJ’s opinion and
supplements it with its own reasoning, we review both decisions.
Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007).
When rendering an adverse credibility determination,
an IJ must “offer a specific, cogent reason for his or her
disbelief of the applicant.” Zuh v. Mukasey, 547 F.3d 504, 507
(4th Cir. 2008) (internal quotations and alterations omitted).
“Examples of specific and cogent reasons include ‘inconsistent
11
statements, contradictory evidence, and inherently improbable
testimony; [in particular,] where these circumstances exist in
view of the background evidence on country conditions, it is
appropriate for an Immigration Judge to make an adverse
credibility determination on such a basis.’” Tewabe v.
Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (quoting In re S-M-
J-, 21 I. & N. Dec. 722, 729 (BIA 1997) (en banc)). In
contrast, “we will not defer to adverse credibility findings
based on speculation, conjecture, or an otherwise unsupported
personal opinion.” Zuh, 547 F.3d at 507. “[A]n alien's own
testimony may in some cases be the only evidence available, and
it can suffice where the testimony is believable, consistent,
and sufficiently detailed to provide a plausible and coherent
account of the basis for his alleged fear.” Matter of Dass, 20
I. & N. Dec. 120, 124 (BIA 1989). Illusory inconsistencies do
not, however, support an adverse credibility finding. See Zuh,
547 F.3d at 508. And while omissions of facts in an asylum
application or during testimony do not, in themselves, support
an adverse credibility determination, the omission of key events
coupled with numerous inconsistencies may provide a specific and
cogent reason to support an adverse credibility finding. In re
A-S, 21 I. & N. Dec. 1106, 1109 (BIA 1998).
Here, the IJ based his adverse credibility
determination on five independent grounds. Although not all of
12
the IJ’s stated grounds withstand scrutiny, we conclude that, on
balance, the IJ had cogent reasons for the determination.
The IJ first faulted Majid for a lack of detail in his
testimony regarding his smuggled trip to the United States,
including his alleged dates of travel and plane and boat routes.
The IJ found Majid’s account of his travel implausible, noting
that: “Despite his education and training as a lawyer, [Majid]
expresses a glaring lack of awareness of his surroundings during
his smuggled trip into the United States.” J.A. 190. The IJ
went on to note that “[Majid] knows some English, a language
present in most airports and on airlines, but he did not
recognize the countries that he passed through or the airlines
he took during his smuggled trip to the United States.” Id.Further, the IJ observed that “[Majid] was in occasional
possession of a false passport during his trip to the United
States, but claims that he did not notice his alleged country of
origin even though he saw his pictures inside the passport and
passed through immigration control in one of the transit
countries.” Id.Majid attempts to explain away these deficiencies in
his account by claiming that he was frightened during the trip
and was concerned with taking care of his wife (then five months
pregnant) and two-and-a-half year old daughter. He notes that
the IJ offered no basis for his claim that English signage is
13
present in most airports. And Majid questions how his training
as a lawyer in Afghanistan is relevant to ascertaining
information about his flight itinerary, which, as Majid
explains, Asef sought to keep secret from Majid. Majid was
instructed by Asef not to ask questions about the details of the
travel.
Majid additionally supplied an affidavit from Kurt
Lohbeck, an Afghanistan expert, which states that “the method of
smuggling by men called[] ‘Najeeb’ and ‘Asef’ is typical of how
such things worked prior to 9/11/2001.” J.A. 84. Lohbeck
affirmed that a cost of $25,000 “was within the norm” and that:
For this Afghan family to stay in a place in Peshawar,
Pakistan for less than two weeks, a place called
Shobra Hotel, it is not uncommon for them not to have
records. The hotels in Peshawar where refugees would
go is [sic] very different from such places in this
country. They are primitive, crude and most likely do
not have records to be kept for proof of staying in
the hotel.
Id.We observe first that an assumption regarding what a
person trained as a lawyer in Afghanistan would or would not
have observed amounts to “speculation, conjecture, or an
otherwise unsupported personal opinion” and is not a cogent
reason that can support an adverse credibility determination.
See Zuh, 547 F.3d at 507; cf. Cosa v. Mukasey, 543 F.3d 1066,
1068-69 (9th Cir. 2008) (rejecting IJ’s credibility
14
determination based upon “pure speculation” about how someone of
petitioner’s purported religion might look and act); Razkane v.
Holder, 562 F.3d 1283, 1287-89 (10th Cir. 2009) (rejecting IJ’s
determination regarding how person who is a homosexual would
look and act). Similarly, we cannot base affirmance on the IJ’s
unsubstantiated assertion that “English [is] a language present
in most airports and on airlines.” J.A. 190. This assertion
lacks any foundation in the record.
We do, however, accept the IJ’s more general
assessment that Majid’s account of his voyage to the United
States was lacking in detail. The IJ was permitted to cite this
lack of detail as a cogent reason in support of an adverse
credibility determination.
Second, the IJ supports his adverse credibility
determination with what he perceived to be several
inconsistencies in Majid’s asylum application and testimony. As
discussed below, because two of these inconsistencies are
supported by the record, we conclude that these inconsistencies
provide a second cogent reason to support the adverse
credibility determination.
Specifically, the IJ found Majid’s claim that his
thirteen-month imprisonment by General Dostum resulted from his
investigation into the general’s alleged crimes to be
inconsistent with his statement that he was accused by the
15
general of being a CIA spy. Majid claims that there is no
inconsistency here because the accusations of being a CIA spy
were pretextual and the real reason for Majid’s arrest was his
investigation into the general’s alleged crimes. Majid provided
the Lohbeck affidavit to the BIA in support of this contention.
Majid’s original affidavit in support of his asylum application,
however, stated that the accusations of being a CIA spy were the
result of his objection to communism, which the IJ was entitled
to find inconsistent with Majid’s later explanation and the
Lohbeck affidavit.
The IJ also found inconsistent Majid’s various
accounts of the manner in which General Dostum learned of
Majid’s investigation into the general’s criminal activities,
and Majid’s statements regarding whether he had ever filed a
complaint against the general. We agree that Majid’s affidavit
and extensive testimony on these points was confusing and
potentially contradictory, and the IJ was within his discretion
to interpret them as inconsistent.
Third, the IJ concluded that Majid’s demeanor, which
“appeared unemotional and unaffected,” was inconsistent with a
person who alleged he had been tortured. J.A. 190. We review
the IJ’s assessment that Majid “appeared unemotional and
unaffected” bearing in mind the IJ’s superior ability to gauge
the witness’ demeanor. Zine v. Mukasey, 517 F.3d 535, 541 (8th
16
Cir. 2008). “[A] consistent story, independently supported in
important respects and unmarred by implausibilities or
inconsistencies, could not normally be disregarded merely
because the witness -- especially one from a different culture
and unversed in English -- simply struck the decision-maker as
untruthful.” Teng v. Mukasey, 516 F.3d 12, 16 (1st Cir. 2008).
We are not faced with such a situation in this case. The IJ’s
adverse credibility determination hinges not only on Majid’s
unemotional demeanor, but on additional and independent cogent
reasons: inconsistencies in Majid’s accounts and a lack of
detail. We therefore accept the IJ’s conclusions regarding
demeanor as supportive of the IJ’s adverse credibility
determination.
Fourth, the IJ found it “troubling” that Majid
provided inadequate corroboration for his claim that he entered
the United States within one year of his asylum application as
well as regarding his claim of past and fear of future
persecution. J.A. 191. The IJ observed that medical records or
affidavits from Majid’s coworkers, neighbors, or family members
describing the circumstances of his arrest, prison conditions,
or recovery from injuries inflicted through torture would
“better support [Majid’s] testimony.” Id. Additionally, the IJ
would have liked tangible evidence of Majid’s trip to the United
17
States other than his unauthenticated letter from the Shobra
Hotel in Pakistan.
“Although an applicant’s credible testimony may be
sufficient to carry his burden of proof, an IJ is entitled to
evaluate the asylum-seeker’s credibility and to require
corroboration of self-serving testimony when such corroboration
appears to be readily obtainable.” Muñoz-Monsalve v. Mukasey,
551 F.3d 1, 8 (1st Cir. 2008). Here again, the IJ did not base
his adverse credibility determination solely on Majid’s lack of
corroborating evidence, and, as we have explained above, the IJ
offered several cogent reasons for the determination.
Consequently, we need not determine whether the IJ was entitled
to discount the credibility of Majid’s testimony based Majid’s
failure to produce specific records.
We have some skepticism about the IJ’s fifth basis for
his adverse credibility determination. The IJ observed that
Majid’s testimony was “non-responsive when the DHS and this
Court inquired into basic components of his story.” J.A. 190.
The IJ did not, however, specify which components of Majid’s
story he was referring to. And a review of the hearing
transcript reveals that, while Majid’s initial responses to
certain yes or no questions were in the form of explanations
rather than simple one-word answers, after prompting from the
IJ, he did eventually answer each question. Additionally, few
18
of these yes or no questions pertained to material aspects of
Majid’s account. See, e.g., J.A. 340-41 (offering explanation
rather than yes or no when asked whether General Dostum had been
elected president of Afghanistan); J.A. 345 (initially
nonresponsive when asked whether he informed his relatives he
planned to flee Afghanistan); J.A. 353-54 (initially
nonresponsive when asked whether communists and mujahidin in
Afghanistan, whom Majid referred to as “hav[ing] been criminal,”
have ever been prosecuted); J.A. 358 (offering explanation
rather than yes or no when asked whether he had attempted to
contact the Karzai government to advise it of misdeeds of
members of the government). To the extent Majid’s answers to
these questions may be attributed to language problems or
nervousness, they do not form a proper basis for an adverse
credibility determination. See Elias v. Gonzales, 490 F.3d 444,
450 (6th Cir. 2007). However, because the IJ offered several
other cogent reasons in support of his determination, and his
analysis largely supports the finding that Majid lacked
credibility, we need not determine whether Majid’s alleged
nonresponsiveness provided a separate cogent reason.
In conclusion, the bases cited by the IJ for his
adverse credibility determination in this case were, on balance,
cogent, and the record does not compel a contrary conclusion.
As explained above, because we accept the IJ’s adverse
19
credibility determination, we will leave in place the IJ’s
conclusion that Majid has failed to establish the requisite fear
of future persecution.
* * *
For the reasons stated above, we deny Majid’s
petitions for review of (1) the BIA’s order denying his claims
for asylum and withholding of removal and (2) the BIA’s order
denying his motion for reconsideration.
PETITIONS FOR REVIEW DENIED
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